Commissioner of Taxation v Jayasinghe [2016] FCAFC 79

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Jayasinghe [2016] FCAFC 79 Appeal from: Jayasinghe v Commissioner of Taxation [2015] AATA 456

File number: NSD 877 of 2015

Judges: ALLSOP CJ, PAGONE AND DAVIES JJ

Date of judgment: 9 June 2016

Catchwords: TAXATION – Appeal from Administrative Appeals Tribunal – Income Tax – Whether appellant holder of an office in an international organisation within meaning of International Organisations (Privileges and Immunities) Act 1963 (Cth)

Legislation: International Organisations (Privileges and Immunities) Act 1963 (Cth) ss 3, 6 Taxation Administration Act 1953 (Cth) Schedule 1 ss 357-5, 357-60 United Nations (Privileges and Immunities) Regulations 1986 (Cth) regs 3, 6, 7, 8, 10, 11 Convention on the Privileges and Immunities of the United Nations done at London on 13 February 1946, Articles V-VII

Cases cited: AB v Western Australia [2011] HCA 42; 244 CLR 390 Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; 254 CLR 247 AssetInsure Pty Ltd v New Cap Reinsurance Corp Ltd (in liq) [2006] HCA 13; 225 CLR 331 Attorney-General (Cth) v Oates [1999] HCA 35; 198 CLR 162 Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 Baini v The Queen [2012] HCA 59; 246 CLR 469 Bradley v The Commonwealth of Australia & Anor [1973] HCA 34; 128 CLR 557 Burge v Swarbrick [2007] HCA 17; 232 CLR 336 Cabell v Markham 148 F.2d 737 (1945) Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; 92 CLR 390 East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44; 233 CLR 229 Edwards v Clinch [1982] AC 845 Federal Commissioner of Taxation v Consolidated Media Holdings Limited [2012] HCA 55; 250 CLR 503 Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 Grealy v Commissioner of Taxation [1989] FCA 60; 24 FCR 405 Great Western Railway Co v Bater [1920] 3 KB 266 Hollis v Vabu Pty Limited [2001] HCA 44; 207 CLR 21 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Limited [1985] HCA 48; 157 CLR 309 Independent Commission Against Corruption v Cunneen [2015] HCA 14; 89 ALJR 475 Macoun v Commissioner of Taxation [2015] HCA 44; 90 ALJR 93 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 Monis v The Queen [2013] HCA 4; 249 CLR 92 NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; 231 CLR 52 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 Plaintiff M47/2012 v Director General of Security & Ors [2012] HCA 46; 251 CLR 1 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Lavender [2005] HCA 37; 222 CLR 67 Radaich v Smith & Anor [1959] HCA 45; 101 CLR 209 Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd [1993] HCA 40; 178 CLR 379 Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629 Stevens v Brodribb Saw Milling Company Pty Ltd [1986] HCA 1; 160 CLR 16 Sykes v Cleary [1992] HCA 60; 176 CLR 77 The Wik Peoples v Queensland & Ors [1996] HCA 40; 187 CLR 1 Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 Voli v Inglewood Shire Council & Anor [1963] HCA 15; 110 CLR 74 Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388 Second Reading Speech for the International Organisations (Privileges and Immunities) Bill 1963, Australia, House of Representatives, Parliamentary Debates (Hansard), 8 May 1963 pp 1161 and 1162 Parliamentary Debates (Hansard), Australia, Senate, 21 August 1963, p 96

Date of hearing: 3 March 2016

Registry: New South Wales

Division: General Division

National Practice Area: Taxation

Category: Catchwords

Number of paragraphs: 58

Counsel for the Applicant: Mr J Hmelnitsky SC with Ms T Phillips

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr T Slater QC with Ms L McBride

Solicitor for the Respondent: Balazs Lazanas & Welch LLP

ORDERS NSD 877 of 2015

BETWEEN: COMMISSIONER OF TAXATION Applicant

AND: KAMAL JAYASINGHE Respondent

JUDGES: ALLSOP CJ, PAGONE AND DAVIES JJ DATE OF ORDER: 9 JUNE 2016

THE COURT ORDERS THAT:

1. The appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ: 1 I have read the reasons of Pagone and Davies JJ. I have the misfortune to disagree on the question of the proper construction of s 6 of the International Organisations (Privileges and Immunities) Act 1963 (Cth) ("the 1963 Act"). Given their Honours' detailed reasons, there is no requirement that I set out the background to the litigation. I will restrict myself to the essential expression of the matter. 2 Section 6 of the 1963 Act and the United Nations (Privileges and Immunities) Regulations 1986 (Cth) ("the Regulations") thereunder take their place in the legislative history described by the High Court in Macoun v Commissioner of Taxation [2015] HCA 44; 90 ALJR 93 at 97-99 [23]-[37]. 3 The principles of statutory construction and interpretation, and in particular, the relationship between text and context, have been the subject of discussion by the High Court on a number of occasions over the last 30 years. One can begin with what Mason J (as he then was) stated in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Limited [1985] HCA 48; 157 CLR 309 at 315 (though in dissent): Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise. 4 One of the decisions upon which his Honour rested this expression of the matter was Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 where Viscount Simonds said: …words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use "context" in its widest sense…as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy. 5 The passage of Mason J in K & S Freighters has been cited too often to be doubted: see, for example, Independent Commission Against Corruption v Cunneen [2015] HCA 14; 89 ALJR 475 at 488 [57] (French CJ, Hayne, Kiefel and Nettle JJ); Monis v The Queen [2013] HCA 4; 249 CLR 92 at 202 [309] (Crennan, Kiefel and Bell JJ); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 at 280-281 [11] (McHugh ACJ, Gummow and Hayne JJ); Attorney-General (Cth) v Oates [1999] HCA 35; 198 CLR 162 at 175 [28] (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ); CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 [88] (Brennan CJ, Dawson, Toohey and Gummow JJ); Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388 at 399 [19] (Toohey and Gaudron JJ); Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd [1993] HCA 40; 178 CLR 379 at 386-387 [18] (Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ). 6 Most relevantly in these citations, the High Court said in CIC Insurance 187 CLR at 408 [88] (citing Mason J in K & S Freighters at 315, and drawing upon Prince Ernest Augustus of Hanover at 461): [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. 7 This passage from CIC Insurance has also been cited too often to be doubted: see, for example, Independent Commission Against Corruption v Cunneen 89 ALJR at 488 [57] (French CJ, Hayne, Kiefel and Nettle JJ); Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; 254 CLR 247 at 264 [39] (Crennan, Bell and Gageler JJ); Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at 391 [28] (French CJ and Hayne J); Baini v The Queen [2012] HCA 59; 246 CLR 469 at 484 [42] (Gageler J); AB v Western Australia [2011] HCA 42; 244 CLR 390 at 398 [10] (French CJ, Gummow, Hayne, Kiefel and Bell JJ); Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 at 55 [2] (Gleeson CJ, Gummow, Hayne and Crennan JJ) and at 84 [96] (Kirby J); East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44; 233 CLR 229 at 244 [56] (Gleeson CJ, Heydon and Crennan JJ); Burge v Swarbrick [2007] HCA 17; 232 CLR 336 at 357-358 [57] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ); Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531 at 548 [39] (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ); AssetInsure Pty Ltd v New Cap Reinsurance Corp Ltd (in liq) [2006] HCA 13; 225 CLR 331 at 361 [87] (Kirby and Hayne JJ); Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 at 599 [98] (Heydon and Crennan JJ); R v Lavender [2005] HCA 37; 222 CLR 67 at 81 [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Network Ten v TCN Channel Nine 218 CLR at 280 [11] (McHugh ACJ, Gummow and Hayne JJ); Attorney-General (Cth) v Oates 198 CLR at 175 [28] (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ) and at 112 (McHugh J). 8 Recently, the High Court has emphasised the relevant task to be a consideration of the meaning of the statutory text to be fixed. The task naturally begins and ends with the words of the statute. It is not a search for the meaning of secondary sources or for some purpose externally derived then to be transported into the statute. The context of the words has utility in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at 671 [22]; citing Federal Commissioner of Taxation v Consolidated Media Holdings Limited [2012] HCA 55; 250 CLR 503 at 519 [39]; citing Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at 46-47 [47]. 9 There is nothing in Alcan or Consolidated Media or Thiess that permits or requires access to context only after words have been found to contain ambiguity, or that demands that apparent plain language be construed without reference to context if its meaning, read in isolation, first appears unambiguous. That this is so can be understood from what was said at Thiess 250 CLR at 672 [23] where the Court said: The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that "the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated…) is to be preferred to each other interpretation" is in that respect a particular statutory reflection of a general systemic principle. For [citing Cabell v Markham 148 F.2d 737 at 739 (1945), quoted in Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629 at 644 [27]]: It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. 10 The citation of the Court in the above passage from Cabell v Markham was from the opinion of Judge Learned Hand. The previous sentence to that cited passage (and intimately connected with the cited passage, and indeed cited by Kirby J in Residual Assco at the paragraph referred to by the Court in Thiess) was: Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, or a contract, or anything else. 11 The expression of the matter by Judge Hand was echoed in the words of Dixon CJ in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; 92 CLR 390 at 397 (cited by the plurality (McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381 [69], and by French CJ and Hayne J in Lloyds Underwriters 248 CLR at 389 [24]): [T]he context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. 12 Thus, I reject the submission, at the centre of the submissions of the respondent, that context cannot be examined unless some ambiguity is revealed: see para 12 of the respondent's written submissions. This is not to commit the error perceived by the High Court in NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; 231 CLR 52 at 71 [61], 73 [68]-[69] and 55 [1]. This is not to invert the process of statutory interpretation by giving any false precedence to context, or to a convention that might be part of the context; rather it is to appreciate that the context of the statute (when read first and last) assists in the fixing of the statutory meaning to those words.

Section 6 of the 1963 Act 13 Section 6 of the 1963 Act provides for the making of regulations for the purposes set out in paras (a) - (e) of s 6(1): (a) conferring upon an international organisation to which the 1963 Act applies (i) juridical personality and such legal capacities as are necessary for the exercise of the powers and functions of the organisation; and (ii) all or any of the privileges and immunities in the First Schedule (which include immunity from suit or legal process and exemption from taxes and duties); (b) conferring upon (i) a person who holds, or is performing the duties of, an office, prescribed by the regulations to be a high office in an international organisation to which the 1963 Act applies, all or any of the privileges and immunities in Part I of the Second Schedule (being privileges and immunities as are accorded to a diplomatic agent); and (ii) a person who has ceased to hold or perform the duties of such an office, the immunities in Part II of the Second Schedule (immunity from suit or legal process in respect of acts done in that capacity); (c) conferring upon (i) a person who is accredited to, or is in attendance at, an international conference convened by an international organisation to which the 1963 Act applies as a representative of another country, or another international organisation or an overseas organisation to which the 1963 Act applies, all or any of the privileges and immunities in Part I of the Third Schedule; and (ii) a person who has ceased to be accredited to such an organisation or attended such a conference, the immunities in Part II of the Third Schedule; (d) conferring upon (i) a person who holds an office in an international organisation to which the 1963 Act applies (not being an office prescribed by the regulations as a high office) all or any of the privileges and immunities in Part I of the Fourth Schedule (including immunity from suit and other legal process in respect of acts done in his capacity as such as an officer, exemption from taxation on salaries and emoluments received from the organisation); and (ii) a person who has ceased to hold such an office, the immunities in Part II of the Fourth Schedule (the immunity from suit or from other legal process in respect of acts and things done in the capacity as such as an officer); and (e) conferring upon (i) a person who is serving on a committee, or is participating in the work of an international organisation to which the 1963 Act applies, or is performing a mission on behalf of such an organisation, all or any of the privileges and immunities in Part I of the Fifth Schedule; and (ii) a person who has served on such a committee or participated in such or has performed such a mission, the immunities in Part II of the Fifth Schedule. 14 Before going to the Regulations, the following can be said about s 6. First, the offices referred to in paras 6(1)(b) and (d) are "in" the relevant international organisation, here the United Nations ("UN"). Thus, attention is immediately directed to the conception of holding an office in the UN as opposed to the undertaking of physical activity, such as in paras 6(1)(c) and (e): being accredited to or in attendance at a conference or serving on a committee or participating in work or performing a mission. 15 Secondly, the different paragraphs and different suites of privileges and immunities in the five schedules to the 1963 Act provide for nuanced differences in the regulations for different categories of person, within the limits set within the schedules. 16 Thirdly, the purpose of conferring the privileges and immunities is not for the benefit of the person concerned, but to assist the organisation (here the UN) in the performance of their functions: Macoun 90 ALJR at 101 [54]. That being so, one is naturally led to seek to understand how the organisation in question conceives of the notion of an office held by someone in it. 17 The Convention on the Privileges and Immunities of the United Nations done at London on 13 February 1946 ("the UN P&I Convention") – after providing in Article I for the juridical personality of the UN, in Article II for the property funds and assets of the UN, in Article III for facilities in respect of communication and in Article IV for the representatives of members – deals, in Article V, with "officials". Article V (sections 17 to 21) is (are) in the following terms: ARTICLE V – OFFICIALS SECTION 17 The Secretary-General will specify the categories of officials to which the provisions of this article and article VII shall apply. He shall submit these categories to the General Assembly. Thereafter these categories shall be communicated to the Governments of all Members. The names of the officials included in these categories shall from time to time be made known to the Governments of Members. SECTION 18 Officials of the United Nations shall: (a) be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity; (b) be exempt from taxation on the salaries and emoluments paid to them by the United Nations; (c) be immune from national service obligations; (d) be immune, together with their spouses and relatives dependent on them, from immigration restrictions and alien registration; (e) be accorded the same privileges in respect of exchange facilities as are accorded to the officials of comparable ranks forming part of diplomatic missions to the Government concerned; (f) be given, together with their spouses and relatives dependent on them, the same repatriation facilities in time of international crisis as diplomatic envoys; (g) have the right to import free of duty their furniture and effects at the time of first taking up their post in the country in question. SECTION 19 In addition to the immunities and privileges specified in section 18, the Secretary-General and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities exemptions and facilities accorded to diplomatic envoys, in accordance with international law. SECTION 20 Privileges and immunities are granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves. The Secretary-General shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations. In the case of the Secretary-General, the Security Council shall have the right to waive immunity. SECTION 21 The United Nations shall cooperate at all times with the appropriate authorities of Members to facilitate the proper administration of justice, secure the observance of police regulations and prevent the occurrence of any abuse in connection with the privileges, immunities and facilities mentioned in this article. 18 Whilst the word "office" is not used in s 17 in Article V, the word "official" is. The immunities and privileges provided for in s 18 are the equivalent to the content of Part I of the Fourth Schedule to the 1963 Act for an "officer" as described in the Schedule (being a person holding an office in the UN for the purposes of s 6(1)(d)). The additional privileges and immunities in s 19 accord with the privileges and immunities for the person who holds a high office for the purposes of s 6(1)(b) and Part I of the Second Schedule. 19 Article VI (sections 22 to 23) of the UN P&I Convention deals with "experts on missions" for the UN and is in the following terms: ARTICLE VI – EXPERTS ON MISSIONS FOR THE UNITED NATIONS SECTION 22 Experts (other than officials coming within the scope of article V) performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded: (a) immunity from personal arrest or detention and from seizure of their personal baggage; (b) in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind. This immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations; (c) inviolability for all papers and documents; (d) for the purpose of their communications with the United Nations, the right to use codes and to receive papers or correspondence by courier or in sealed bags; (e) the same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign governments on temporary official missions; (f) the same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys. SECTION 23 Privileges and immunities are granted to experts in the interests of the United Nations and not for the personal benefit of the individuals themselves. The Secretary-General shall have the right and the duty to waive the immunity of any expert in any case where, in his opinion, the immunity would impede the course of justice and it can be waived without prejudice to the interests of the United Nations. 20 Thus, the language and structure of s 6 of the 1963 Act can be seen as reflecting some important concepts, and the language used, in the UN P&I Convention. The same can be said of the relevant Regulations: in particular, regs 6, 7 and 8 dealing with privileges and immunities of the Secretary-General, the Under Secretary-General and the Assistant Secretary-General who hold "high office" in the UN, and regs 10 and 11 dealing with "officers" and "persons performing missions". The word "officer" can be seen in the Fourth Schedule and traced to "holds an office in" in s 6(1)(d) and "officials" in the UN P&I Convention. 21 The phrase "persons performing missions" can be seen in Article VI of the UN P&I Convention, and in Part II of the Fifth Schedule and s 6(1)(e) of the 1963 Act. 22 Regulations 10 and 11 are in the following terms: 10. Privileges and immunities of officers (other than high officers) of the United Nations (1) Subject to subregulation (2), a person who holds an office in the United Nations, other than a person who holds, or is performing the duties of, an office specified in subregulation 6 (1), 7 (1) or 8 (1), has the privileges and immunities specified in Part I of the Fourth Schedule to the Act. (2) A person to whom sub-regulation (1) applies does not have the right to export furniture and effects free of duties when leaving Australia on the termination of his or her functions. (3) A person who has ceased to hold an office in the United Nations, other than an office specified in subregulation 6 (1), 7 (1) or 8 (1), has the immunities specified in Part II of the Fourth Schedule to the Act. 11. Privileges and immunities of persons performing missions for the United Nations (1) A person who is performing, whether alone or jointly with other persons, a mission on behalf of the United Nations has the privileges and immunities specified in paragraphs 1, 2, 3, 4, 5 and 6 of Part I of the Fifth Schedule to the Act. (2) A person who has performed a mission on behalf of the United Nations has the immunities specified in Part II of the Fifth Schedule to the Act. 23 As to Reg 10, a person who holds an office in the UN is to be understood as an officer of the UN. The context of that is the conception of an official of or in the UN in the UN P&I Convention. Both the language of the statute (s 6(1)(d) – "holds an office in") and of the Regulations ("officers…of" and "holds an office in") direct attention to the structure of the organisation and the identity of the people in the organisation. This is confirmed by the context of Article V of the UN P&I Convention and "officials" being specified by categories by the Secretary-General for the decision of the General Assembly. 24 As to Reg 11, the privileges and immunities are given to "a person who is performing a mission on behalf of the [UN]". This partly reflects the language of Article VI of the UN P&I Convention: "experts on missions". Regulation 11 is only directed to one phrase of a number from s 6(1)(e). 25 Thus, there is a clear structural coherence between s 6 of the 1963 Act and the relevant Regulations under it, and the UN P&I Convention. That structural coherence and the language of Articles V and VI of the UN P&I Convention assist in the conclusion that one looks to the arrangements and affairs of the UN to decide who is an official of the UN (Article V) or an "officer of" the UN (the Fourth Schedule to the 1963 Act and Reg 10) or "holds an office in" the UN (s 6(1)(d)). The context of the UN P&I Convention assists in fixing the language of the relevant provisions: s6(1)(d) and Reg 10. The language, of the relevant provisions, itself directs one as to how the organisation itself structures its affairs and identifies those who work for it (in particular in regard to privileges and immunities) so as to best conduct its functions. 26 When one makes the inquiry as to who holds an office in the UN, one finds Art 101 of the Charter of the United Nations, which in para 1 contains the provision that: The staff shall be appointed by the Secretary-General under regulations established by the General Assembly. 27 The evidence before the Tribunal and this Court contained the staff regulations of the UN. Regulation 4.1 states: As stated in Article 101 of the Charter, the power of appointment of staff members rests with the Secretary-General. Upon appointment, each staff member, including a staff member on secondment from government service, shall receive a letter of appointment in accordance with the provisions of Annex II to the present Regulations and signed by the Secretary-General or by an official in the name of the Secretary-General. 28 Annexure II sets out what the letter of appointment shall state. 29 As to privileges and immunities, in 1946, the Secretary-General recommended to the General Assembly that the privileges and immunities in Art V (and Art VII) of the UN P&I Convention should be granted to all "members of staff…with the exception of those who are recruited locally and who are assigned to hourly rates." The General Assembly adopted this by resolution in the 50th Plenary session on 7 December 1946. 30 Thus, to understand who is an official of the UN for its own purposes, one needs to understand whether someone is a member of staff. 31 The contractual arrangements between the UN and Mr Jayasinghe were at pains to make clear that, as between the UN and himself, he was not a member of staff or an official. The individual contractor agreement identified the terms of the retainer as including the following: (a) The general terms and conditions contained Clause 1.1, which stated under the heading "Legal Status of the Individual Contractor" the following: "the Individual Contractor shall have the legal status of an independent contractor vis-à-vis UNOPS, and shall not be regarded, for any purposes, as being a either (sic) staff member of the United Nations…under the Staff Regulations and Rules of the UN, or an "official" of the UN/UNOPS for the purposes of the Convention on the Privileges and Immunities of the United Nations." (b) They also contained a Clause 3, addressed to taxation, which stated: The Individual Contractor is responsible for paying any tax levied by his/her Government or other entities on his/her UNOPS earnings. Under no circumstances will UNOPS reimburse such taxes. (c) The individual contractor agreement policy contained Clauses 4.1.1, 4.1.2 and 4.1.4, under the heading "Legal Status, Rights and Obligations", which stated as follows: 4.1.1 Individual contractors are independent contractors serving in their individual capacity and not as representatives of a government, organisation or any other entity including UNOPS. 4.1.2. They are neither "staff members of UNOPS under the UN Staff Regulation and Rules nor "officials" of the United Nations as defined under the Convention on the Privileges and Immunities of the United Nations adopted by the General Assembly of the United Nations on 13 February 1946. … 4.1.4 In general, all international individual contractors are considered "experts on mission for the United Nations" within the terms of s 22 of Article VI of the 1946 Convention on the Privileges and Immunities of the United Nations except for those international individual contractors who were accorded the status of international individual contractors contrary to the provisions of this policy. 32 In my view, these contractual arrangements dealing with the status of Mr Jaysinghe in the organisation of the UN are determinative. According to its own rules and agreements, made pursuant to its staff regulations, Mr Jayasinghe did not hold an office in the UN and was not a member of staff. He was not an official of or an officer of the UN. He so agreed. That he may be characterised as in employment or as an employee, if one was seeking to ask another question, is not to the point. The meaning of the words of the 1963 Act and the Regulations thereunder, in particular when read in their context, require one to ask oneself whether, in the organisation itself, he held an office or was an official of that organisation or an officer of that organisation. The purpose of the inquiry is to ascertain whether privileges and immunities for the benefit of the organisation were enjoyed by the individual. Just as the organisation could waive the immunities, so did the organisation have the power to decide who was an officer or an official of it, and who held an office in it. 33 It is not just a process of deciding what the word "office" means in the dictionary or by reference to authority referable to other contexts. Here the context assists in fixing the meaning of the statute as requiring an understanding of how the organisation views the person to answer the question whether he or she is an officer or an official of, or holds an office in, that organisation. 34 In my respectful view, the Tribunal failed to approach the matter with a proper perspective on the construction of s 6(1)(d) and Regulations 10 and 11.

Tax Determination 92/153 35 The proper construction of the 1963 Act is, however, not an end of the matter. The question arises whether s 357-60 of Schedule 1 to the Taxation Administration Act 1953 (Cth), read with Taxation Determination 92/153, precludes the Commissioner from taxing the respondent's UNOPS earnings. 36 By s 357-60, the Commissioner is statutorily bound to deal with the taxpayer if the ruling applies to the taxpayer and the taxpayer relies on the ruling by acting in accordance with it. There is no debate about the pre-conditions of the section applying to Mr Jayasinghe and his reliance on the ruling by acting in accordance with it. 37 The Taxation Determination TD92/153 is entitled: Income tax: who is a "person who holds an office" as specified in the various regulations made under the [1963 Act]. 38 The Taxation Determination has three paragraphs and a note. They are set out in the judgment of Pagone and Davies JJ. The approach to the construction of a taxation ruling such as this should bear in mind the object of the part of the Taxation Administration Act that is set out in s 357-5 of the Act. This is also set out in the judgment of Pagone and Davies JJ. A taxpayer is entitled to read the Taxation Determination in an unvarnished way and as containing an expression of how the Commissioner of Taxation views the law. Thus looked at, one does not go to the 1963 Act. Instead, one seeks to interpret the meaning of the ruling to an ordinary reader, who is a taxpayer. First, Mr Jayasinghe was entitled to read this document and to ask himself whether he was a person who worked as an employee of the organisation. For the reasons expressed by the Tribunal, and as expressed by Pagone and Davies JJ, I would agree that Mr Jayasinghe worked as an employee of UNOPS. That, however, is not the end of the matter. A person in the position of Mr Jayasinghe would have been required to ask himself whether he was either a person who was locally engaged by UNOPS and paid an hourly rate (plainly he was not); or whether he was a person "engaged by the organisation as an expert or consultant". That would have taken Mr Jayasinghe to the terms of his engagement. The terms of Mr Jayasinghe's engagement included the provision that, as an international individual contractor, he was considered "an expert on mission for the United Nations" within the terms of s 22 Article VI of the UN P&I Convention. Thus, whether or not he worked as an employee of UNOPS, he was engaged by that organisation as an expert on mission. 39 In my view, that engagement as an expert on mission and not as a staff member took him outside the terms of taxation determination TD 92/153. 40 For these reasons, I would allow the appeal, set aside the decision of the Administrative Appeals Tribunal and restore the disallowance of the objection by the applicant. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Associate: Dated: 9 June 2016

REASONS FOR JUDGMENT

PAGONE AND DAVIES JJ: 41 This is an appeal from the Administrative Appeals Tribunal ("the Tribunal") which held that the taxpayer was exempt from tax for the income years ended 30 June 2010 and 30 June 2011. The taxpayer was a qualified civil engineer who had been engaged during the relevant years by the United Nations Office of Project Services ("the UN Office of Project Services") to perform work in Sudan as a project manager. The Commissioner assessed the taxpayer in September 2013 upon his earnings from that engagement and the taxpayer objected to the assessments contending that his earnings were exempt under either, or both of, (a) the International Organisations (Privileges and Immunities) Act 1963 (Cth) ("the 1963 Act") and (b) Taxation Determination TD92/153 ("TD92/153"). The Commissioner's decision to disallow the objection on both grounds was referred to the Tribunal for review under Part IVC of the Taxation Administration Act 1953 (Cth) ("the Administration Act"). The taxpayer was successful before the Tribunal on both grounds, with the Tribunal finding that the taxpayer was the "holder of an office in" an international organisation within the meaning of the 1963 Act and also a person who worked as an employee of that organisation within the meaning of TD92/153. The Commissioner challenged both bases of the Tribunal's decision and must succeed on both grounds to succeed in the appeal.

A. Holding an office in the international organisation 42 Section 6 of the 1963 Act enables certain privileges and immunities to be conferred by regulation on classes of persons who are or have been associated with international organisations to which the 1963 Act applies. Section 3(1) defines "international organisation to which this Act applies" (for purposes which include those of s 6(1) of the 1963 Act) to mean an organisation that is declared by the regulations to be an international organisation to which the 1963 Act applies. The United Nations was declared to be an international organisation to which the 1963 Act applies by regulation 3 of the United Nations (Privileges and Immunities) Regulations 1986 (Cth) ("the 1986 Regulations"). 43 Section 6(1)(d) of the 1963 Act specifically permits the conferral, by Regulation, of all or any of the privileges and immunities specified in Part 1 of the Fourth Schedule. Item 2 in Part 1 of the Fourth Schedule includes "[e]xemption from taxation on salaries and emoluments received from the organisation" as one of the privileges and immunities permitted by s 6(1)(d) which may be conferred upon a person who "holds an office in" an international organisation to which the 1963 Act applies. Regulation 10(1) of the 1986 Regulations confers the privileges and immunities specified in Part 1 of the Fourth Schedule to the 1963 Act to "a person who holds an office in the United Nations". A person holding such an office is, therefore, given an immunity from taxation by the combined operation of s 6 of the 1986 Act and reg 10(1) of the 1986 Regulations: see Macoun v Commissioner of Taxation (2015) 326 ALR 452, [47]. 44 The application of these provisions to the taxpayer depends upon whether he was a person who held an "office in" the United Nations. The learned deputy president concluded that the taxpayer was the holder of an "office" under the UN Office of Project Services having regard to the substance of the relationship and the obligations created and implemented in carrying out the project for which he was engaged by the UN Office of Project Services. The Commissioner contended on appeal that the Tribunal erred in its conclusion and submitted that: a. the Tribunal misconstrued the composite phrase "person who holds an office in an international organisation" within the meaning of s 6(1)(d) of the [1963 Act]; b. the Tribunal misconstrued the composite phrase "person who holds an office in the United Nations" within the meaning of regulation 10(1) of the [1986 Regulations]; c. in determining whether the respondent held office within s 6(1)(d) and/or regulation 10(1), the Tribunal wrongly applied a test which looked at "the substance of the duties, tasks and functions which [the respondent] was engaged to perform and the way in which those tasks were supervised and implemented in practice"; d. in determining whether the respondent held office within s 6(1)(d) and/or regulation 10(1), the Tribunal wrongly failed to have regard, as a fundamental consideration, to the fact that the respondent was designated by the UN and UNOPS pursuant to his contract of engagement not to be an employee or an official of the UN or UNOPS; and e. the Tribunal wrongly considered that its finding that the respondent's engagement by UNOPS did not have "the hallmarks of an independent contractor" meant that he did not hold office pursuant to s 6(1)(d) of the [1963 Act] and/or regulation 10(1) of the [1986 Regulations]. 45 The task of statutory construction must begin with a consideration of the text in question. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenues (2009) 239 CLR 27 Hayne, Heydon, Crennan and Kiefel JJ said at [47]: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (footnotes omitted) In this case the meaning of the word "office" falls to be determined as part of the composite phrase "a person who holds an office in an international organisation". That requires consideration of the context in which the phrase is used and the purpose the words are enacted to secure. Sykes v Cleary (1992) 176 CLR 77, 96-7. 46 The 1963 Act was introduced to permit the conferral of benefits upon individuals solely in the interests of the organisation to enable it to perform its functions: see Macoun at 463, [54]; see also Second Reading Speech for the International Organisations (Privileges and Immunities) Bill 1963, Australia, House of Representatives, Parliamentary Debates (Hansard), 8 May 1963 pp 1161 and 1162; and Australia, Senate, Parliamentary Debates (Hansard), 21 August 1963, p 96. In Macoun the High Court considered s 6 of the 1963 Act and referred to the importance of the status of the grantee of the privilege in the performance of functions for the international organisation. The Court said at [53] to [54]: [53] As the Commissioner submitted, the grant of the privilege in the form of taxation exemption contained in Pt I of the Fourth Schedule to the IOPI Act depends on the status of the grantee as the office holder as and when the relevant amount is received. That distinction is reinforced by the text of the immunity for former officers in Pt II of the Fourth Schedule, which is limited to "[i]mmunity from suit and from other legal process in respect of acts and things done in his [or her] capacity as such an officer". The immunity has two limitations. It is limited to immunity from suit and other legal process and, significantly, in respect only of acts and things done as an officer. It does not extend to acts and things done after the person ceases to be an officer. [54] That construction is consistent with the statutory purpose or purposes of the IOPI Act. The IOPI Act sets the upper limits of the privileges and immunities which might be conferred by the regulations by reference to identified organisations and identified capacities of persons engaged in the work of those organisations. The purpose of conferring the privileges and immunities in that manner is not for the benefit of, or personal to, the persons connected with those international organisations, but is rather to assist the organisations in the "performance of [their] functions". That purpose of functional necessity is reinforced by the inclusion in the IOPI Act and the SAPI Regulations of a provision allowing for a specialised agency to waive any privileges or immunities to which a current or former office holder is entitled under the IOPI Act and the SAPI Regulations. The privilege of exemption from taxation whilst an officer of a specialized agency is designed to ensure that the international organisation secures the services of an officer who remains independent by reason of not having to submit to the taxation jurisdiction of a Convention State (whether the State of his or her nationality or residence, or a State in which he or she is located whilst working for the organisation). Of course, when the officer ceases to hold the office, the interest of the international organisation disappears. In contrast, the interest of the international organisation in respect of the immunity from suit and other legal process for former officers in Pt II of the Fourth Schedule continues after an officer ceases to hold the office, because the independence of officers is served by confidence that they will not face civil liability or criminal prosecution for their official acts after they cease to hold that office. (footnotes omitted) The 1963 Act was enacted in part to give effect to the UN Convention, which by s 17(b) in Article V, provided that officials of the United Nations were to be exempt from taxation on the salaries and emoluments paid to them by the United Nations. Section 20 in Article V provided that the privileges and immunities were granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves, but the article did not define, or confine, the meaning to be given to the word "official". Chapter XV of the United Nations Charter (which entered into force for Australia on 1 November 1945) provided for the establishment of a secretariat and the appointment by the Secretary-General of staff, but those who might be considered to be officials of the United Nations were not confined to the Secretary-General or other high officials. On 7 December 1946 the General Assembly adopted a resolution that the categories of officials to which the privileges and immunities referred to in Articles 5 and 7 of the Convention on the privileges and immunities of the United Nations was to extend to "all members of staff of the United Nations, with the exception of those who are recruited locally and are assigned to hourly rates". 47 The content of the words "office in" found in the 1963 Act do not have a narrow or confined meaning. They are intended to apply to facilitate fulfilment of the purpose of furthering the functions of the United Nations. Furthermore, as the High Court stated in Macoun at [54] the privilege of exemption from taxation whilst an officer of a specialised agency is designed to ensure that the international organisation secures the services of an officer who remains independent by reason of not having to submit to the taxation jurisdiction of a Convention State. As the authorities recognise, the word "office" is capable of a variety of meanings depending in the context on which the word is used: Sykes v Cleary (1992) 176 CLR 77, 96-7; Grealy v Commissioner of Taxation (1989) 24 FCR 405, 411-2. The oft cited authority on the meaning of "office" is Great Western Railway Co v Bater [1920] 3 KB 266. In that case Rowlett J said at 274 that an office was something "which was a subsisting, permanent, substantive position, which had an existence independent of the person who filled it, and which went on and was filled in succession by successive holders…": see also Edwards v Clinch [1982] AC 845, 860, 864. ""The role of project manager occupied by the taxpayer was an "office" within the meaning of "office" ascribed by Rowlett J in Bater. The Tribunal found at [44]: This evidence indicates that the position of Project Manager for the Project was for a substantial period, which took many months. The evidence also indicates that after the Applicant left the positon of Project Manager, another person was appointed to act in the position. The position was to this extent independent of the identity of the individual incumbent. It existed before his service and continued after his service. On those findings, the taxpayer's position as Project Manager was "an office in an international organisation", namely, the UN, within the meaning of the statutory text in s 6 of the 1963 Act and reg 10(1) of the 1986 Regulations. 48 The appointment of the taxpayer in this case was to a position as project manager of an overall project of building a 190 kilometre gravel road in Sudan. It was a project undertaken by the UN Office for Special Projects which is the operational arm of the United Nations that provides project management, procurement and infrastructure services to governments and international organisations. The UN Office of Project Services provides management services where the UN has a mandate. A Sudan Operations Centre was established in 2004 to provide services throughout Sudan and the UN Office of Project Services was engaged by various donors and Government Agencies for the procurement and logistics support services and implementation of infrastructure development projects in Sudan. The taxpayer was engaged as the project manager under the direct supervision of the Head of Program to provide advice on policy, technical matters, institutional development and capacity development. The taxpayer was responsible as project manager to establish and maintain effective project structures and processes for delivery of the project and its implementation plan, and to manage the time and contributions of experts in the project in close collaboration with the main support office. The other duties and responsibilities of the project manager included, together with planning, technical and managerial functions, monitoring, supervision, assessment, review and liaising with community leadership and sister agencies. The tasks of a project manager also included organising workshop training, writing, training and technology transfer to national staff and regularly reporting and monitoring. The role of project manager occupied by the taxpayer was a role which was filled by other people both before and after it was occupied by the taxpayer. 49 The Commissioner did not challenge the factual findings made by the Tribunal at [44]. However the Commissioner challenged the conclusion of the Tribunal that the taxpayer held an office in the UN within the meaning of that phrase in s 6 of the 1963 Act. The Commissioner contended that the legislation is not concerned merely to identify a person who holds an office in the international organisation for the purpose of conferring a benefit on that person but rather that it is concerned to implement a scheme that reflects Australia's international obligations in relation to people who hold various positions in relation to specific international organisations and to do so in order to promote the functioning of the organisations themselves. It was argued that the concept of "office holding in the UN" is a matter that is unique to, and determined by, that organisation. This construction was said to be supported by the deliberate distinctions drawn by the legislative scheme between the privileges and immunities to which particular persons associated with the UN are (or are not) entitled. It was submitted that the privileges and immunities conferred on persons who hold an office in the UN under Part 1 of the Fourth Schedule to the 1963 Act and reg 10(1) under the Regulations parallel those conferred on UN officials under s 18 of the Convention. Similarly, the different set of privileges and immunities conferred on persons performing a mission on behalf of the UN under Part 1 of the Fifth Schedule to the 1963 Act and reg 11(1) of the Regulations parallel those conferred on experts performing missions for the UN (other than United Nations officials within the scope of Article V) under s 22 of the Convention. Under the UN Convention, UN officials are granted an exemption from taxation on salaries and emoluments paid to them by the UN (s 18(b) of the Convention) but experts (other than UN officials within the scope of Article V) are not (see s 22 of the Convention). The Commissioner therefore contended that the Tribunal should have reached the conclusion that the taxpayer did not hold an office in the UN, and that the Tribunal should have reached that conclusion by reference to the contractual terms upon which the taxpayer was engaged as project manager by the UN Office of Project Services which specified that the taxpayer was not a United Nations official. It was submitted that the contract should have been given decisive weight by the Tribunal. 50 The taxpayer was engaged under successive individual contractor agreements ("the individual contractor agreements") which incorporated general terms and conditions of individual contractor agreements ("general terms and conditions"), terms of reference ("the terms of reference") and the Individual Contractor Agreement Policy ("the ICA Policy"). Clause 1.1 of the general terms and conditions specifically provided that the individual contractor was to have the legal status of an independent contractor and was not to be regarded "for any purposes, as either [a] staff member of the United Nations … UNOPS under the [UNSRR], or an 'official' of the UN/UNOPS for the purposes of the Convention on the privileges and immunities of the United Nations…adopted by the General Assembly of the United Nations on 13 February 1946". Clause 3 of the general terms and conditions was headed "taxation" and provided that an individual contractor was responsible for paying any tax levied by their government on earnings from the UN Office of Project Services and that the UN Office of Project Services would not reimburse such taxes under any circumstances. The ICA Policy in the applicable years also formed part of the contract. The Policy provided that the individual contractor agreement was a legal instrument and could not be governed by National legislation in countries where the UN Office of Project Services operated and that the individual contractor agreements were used by the UN Office of Project Services "to procure services provided by an individual in his/her individual capacity to perform a specific task or deliver a specific piece of work" as "independent contractors serving in their individual capacities" and not as representatives of the UN Office of Project Services or as officials of the United Nations as defined under the United Nations Convention. The Policy stated that "in general" all international individual contractors were considered "experts on mission for the United Nations" within the terms of s 22 of Article VI of the Convention and were not officials of the UN as defined under the Convention: articles 4.1, 4.1.1 and 4.1.4 of the ICA Policy. 51 A difficulty with the Commissioner's submission is that "legal status" ascribed to the taxpayer by the contractual terms upon which the taxpayer was engaged was as between the UN Office of Project Services and the taxpayer but was not the entire material bearing upon the factual inquiry into whether the taxpayer's position constituted the holding of an office in the United Nations. Aside from the Tribunal's finding (which the Commissioner did not contest) that the taxpayer was not an independent contractor but engaged as an employee, notwithstanding the contractual terms, the taxpayer was given a UN identification card describing him as "Project Manager" and bearing a request that he have extended to him the courtesies, facilities, privileges and immunities which pertain "to his office" and to facilitate by all suitable means the journeys and missions on which he was engaged. In this regard the Tribunal said at [47] and [50]: [47] The Applicant in his Affidavit gives evidence that he was issued a UN Identity Card in respect of similar work carried out later in Afghanistan in relation to his work there, as Project Manager. He says the nature of his work had not changed and that he continued to be engaged by UNOPS as Level 3 ICA. The later UN Identity Card, refers to his "status", with a similar endorsement to the earlier one. It also designates him as a "UN STAFF" and holds him out as a representative of UNOPS when carrying out his duties of liaising with government ministers and donor agencies for the purposes of his UN work. The Applicant also referred to the UN identity card of another holder which, in contrast to the card issued to him refers to the holder as a "National Contractor" as opposed to "UN staff". These documents reinforce the conclusion that the Applicant was held out or represented by UNOPS as the holder of an office and an emanation of UNOPS. […] [50] The Identity card granted to him by UNOPS identifies him as an officer of the United Nations for the purposes of the performance of the works attaching to the position. His duties of negotiating and dealing with governmental and other bodies in his role identify him as a UNOPS officer with a close association with that body and not simply as independent operator. A further difficulty is that the contractual arrangements between the taxpayer and the UN Office of Special Projects (which no doubt affected the rights of the taxpayer as against the UN Office of Project Services) cannot detract from the operation of the 1963 Act. The statutory criterion for exemption from taxation of salaries received from the United Nations is that given by the phrase in the statute, namely, the fact of "holding of an office" in the United Nations. The phrase "holding of an office in" is not statutorily defined for the purposes of the Act, and has the meaning ascribed to it under Australian domestic law, not by internal policy or designation within the United Nations. The Criterion adopted in the statute for the exception is not whether the position held by a person holds an office which the United Nations has designated to be an office for the purposes of Australian domestic legislation but whether the position held is one which comes within the meaning of the words "office in" found in the section. Furthermore, whether or not a person "holds an office in" the United Nations within the meaning of the statutory text is a matter of the application of the statute to the facts and not a matter of contractual agreement. The functional purpose of the benefits capable of conferral upon a person extends to the fact of holding an office in the relevant international organisation by reference to the proper construction of the 1963 Act. The text of the 1963 Act is not ambiguous and is not to be read down by reference to extrinsic materials which do not form part of Australian law: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286-7, 298, 304; Bradley v The Commonwealth of Australia & Anor (1973) 128 CLR 557, 582; NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52, 71-73; Plaintiff M47/2012 v Director General of Security & Ors (2012) 251 CLR 1, 24. The Tribunal was correct to hold that the taxpayer held "an office in" the UN within the meaning of s 6 of the 1963 Act.

B. Working as employee 52 The Commissioner must also succeed in his submission that the taxpayer is not to be treated as an employee by reason of TD92/153 if the Commissioner is to succeed in the appeal. The Commissioner's Tax Determination is binding on him by reason of s 357-60 in Schedule 1 to the Administration Act. TD92/153 sets out the Commissioner's view of the meaning of the words "person who holds an office" under the 1963 Act and states that the phrase covers "those people who work as employees" for a relevant organisation but do not include persons "who are locally engaged by the organisation and paid at an hourly rate" or "persons engaged by the organisation as experts or consultants". The ruling also notes that the relevant international organisation is required to apply the tests in TD92/153 in determining whether a person holds an office but that as a practical matter the designation by the organisation that the person holds an office will be accepted as sufficient evidence of the status of a person. 53 TD92/153 is short and states: 1. Salaries and emoluments received from an international organisation by a person who holds an office in that organisation may be exempt from Australian income tax under regulations made under the International Organisations (Privileges and Immunities) Act 1963 (IO(P+I)A). The availability and extent of exemption varies from organisation to organisation, and in this regard individual regulations should be consulted. The question arises, however, who is a 'person who holds an office' for the purposes of the regulations under the IO(P+I)A. 2. The Department of Foreign Affairs and Trade, who administer the IO(P+I)A and regulations, take the view that the phrase 'person who holds an office' in relation to a prescribed international organisation covers those people who work as employees for that organisation. They do not accept, however, that the phrase includes either: • persons who are locally engaged by the organisation and paid at an hourly rate; or • persons engaged by the organisation as experts or consultants. We agree with those views. 3. In determining whether a person holds an office, the relevant international organisation is required to apply these tests. As a practical matter, if the international organisation designates a person as one who holds an office in that organisation, we will accept, in the absence of contrary evidence, that this designation is sufficient evidence of the status of that person. If the other requirements of the regulations are satisfied, that person will be entitled to the privileges and immunities available to a person who holds an office in that organisation. Note: For experts or consultants who are Australian residents, income received from the international organisation may be exempt under section 23AG of the Income Tax Assessment Act 1936. For more details, reference should be made to the provisions of 23 AG. The Tribunal found at [54] that the taxpayer was a person "who worked as an employee" (emphasis in original), that is, that he worked "in the same way "as an employee" of the international organisation. He was not "engaged as an expert or consultant [but…came] within the ruling". 54 The Commissioner sought to challenge the Tribunal's finding on the basis that the designation of the taxpayer by the UN Office of Project Services was that he was not engaged as an employee but as a specialist. The taxpayer was engaged under an "individual contractor agreement" dated 13 October 2009 (as amended in August 2010) which provided that he was engaged as an "international individual contractor to provide specialist services" at the duty station of Sudan. His functional title was "project manager" and he was engaged at a contract level as an "international specialist – ICA, Level 3" which required project management expertise which he had. Clause 1 of the General Terms and Conditions of Individual Contractor Agreements applicable to the taxpayer provided in clause 1.1: The individual contractor shall have the legal status of an independent contractor vis-à-vis UNOPS, and shall not be regarded, for any purposes, as being either a staff member of the United Nations … /UNOPS under the [UNSRR], or an "official of the UN/UNOPS for the purposes of the convention on the privileges and immunities of the United Nations … adopted by the general assembly of the United Nation on 13 February 1946 … Accordingly, nothing within or relating to this agreement shall establish the relationship of employer and employee or of principal and agent between UNOPS and the individual contractor. (errors in original) Clause 3 of the General Terms and Conditions, as previously mentioned, was headed "Taxation" and provided that the individual contractor was responsible for paying any tax levied by their government on their earnings and that "under no circumstances" would be reimbursed such taxes. As also mentioned, the taxpayer's engagement was also governed by the UN Office of Project Services ICA Policy which, in the years applicable to the taxpayer, provided that the individual contractor agreement was a legal instrument of the UN Office of Project Services which could not be governed by national legislation in countries where UN Office of Project Services operated (Article 1.1) and the contract was used "to avail of services provided by an individual engaged in his/her individual capacity to perform a specific task or deliver a specific piece of work" (Article 1.3). The policy provided that individual contractors were "independent contractors serving in their individual capacity and not representatives of [UN Office of Project Services] and, specifically, have "no employer/employee relationship" with [UN Office of Project Services] and were "not officials of the United Nations as defined under" the Convention. 55 Rulings issued by the Commissioner are to be construed by reference to the purpose for which the Commissioner is empowered to make them. Section 357-5(1) of Schedule 2 to the Administration Act identifies the object of the Commissioner's power to make lawfully binding rulings to be to enable a taxpayer to find out the Commissioner's view about how certain laws administered by the Commissioner apply to the taxpayer to whom the rulings are addressed. Section 357-5 provides: 357-5 Object of this Part (1) The object of this Part is to provide a way for you to find out the Commissioner's view about how certain laws administered by the Commissioner apply to you so that the risks to you of uncertainty when you are self assessing or working out your tax obligations or entitlements are reduced. (2) This object is achieved by: (a) making advice in the form of rulings by the Commissioner available on a wide range of matters and to many taxpayers; and (b) ensuring that the Commissioner provides rulings in a timely manner; and (c) enabling the Commissioner to obtain, and make rulings based on, relevant information; and (d) protecting you from increases in tax and from penalties and interest where you rely on rulings; and (e) protecting you from decreases in entitlements where you rely on rulings; and (f) limiting the ways the Commissioner can alter rulings to your detriment; and (g) giving you protection from interest charges where you rely on other advice from the Commissioner, or on the Commissioner's general administrative practice. The ruling in this case is addressed to those taxpayers needing to determine whether they are to be assessed on the basis of holding an office in a relevant international organisation. The ruling deals with that issue by adopting the broadly expressed view of the Department of Foreign Affairs and Trade which identifies "people who work as employees" as those that are to be considered to hold an office. 56 The terms of the ruling are not to be read as removing from the class of persons working as employees, those persons who both work as employees and are engaged as experts and consultants. The ruling does not say that in terms and there is no sound policy reason compelling that construction. The Commissioner's ruling TD92/153 is not to be read as if it said that a person is not a person holding an office within the meaning of the 1963 Act if a person works as an employee but does so by an engagement as an expert or as a consultant. The ruling, rather, seeks helpfully to explain that persons ordinarily engaged as an expert or consultant would not ordinarily be working as an employee. 57 Whether a person worked as an employee depends upon a consideration of what the person does. The Tribunal in this case found that the taxpayer worked as an employee notwithstanding that the taxpayer was required to have professional qualifications and specialist experience to occupy the position of project manager for the construction of roads. A contrary legal characterisation of the nature of the relationship between the parties does not determine the true legal character of the work undertaken. The contractual relationship between the parties is no doubt relevant to the legal rights created between them and, to that extent, bears upon whether in this case the taxpayer worked as an employee for the purposes of TD92/153, but the legal characterisation of those rights, or the label given to them, do not determine whether the facts fit the relevant legal description: see Radaich v Smith & Anor (1959) 101 CLR 209, 214, 219, 222; Voli v Inglewood Shire Council & Anor (1963) 110 CLR 74, 90-91; Stevens v Brodribb Saw Milling Company Pty Ltd (1986) 160 CLR 16, 24, 36-37; The Wik Peoples v Queensland & Ors (1996) 187 CLR 1, 75-77, 152; Hollis v Vabu Pty Limited (2001) 207 CLR 21, [24]. The contractual terms between the taxpayer and the UN Office of Project Services may be such to prevent him from claiming to be an employee as against the UN Office of Project Services, but do not preclude him from relying upon the fact, as found by the Tribunal, that he worked as an employee. 58 Accordingly, we would dismiss the appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Pagone and Davies.

Associate: Dated: 9 June 2016